Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Northpoint Training Center violated the Open Records Act in responding to the open records request of Ricky A. Duff for copies of "transfers to BBC and Northpoint on or about June 26 & 27."
In his letter of appeal, Mr. Duff stated that he had received only one of the two copies he had requested.
After receipt of a copy of Mr. Duff's letter of appeal, Kathy Gifford, Lieutenant, Open Records Coordinator, Northpoint Training Center, provided this office with a response to the issues raised in the appeal. In her response, Lt. Gifford explained:
The request was logged and sent to the Records Department to be processed. Inmate Duff's institutional folder only had one Transfer Authorization Form. This form was copied and sent to Inmate Duff.
Inmate Duff was transferred to Northpoint Training Center because he had legal work pending that the Bell County Forestry Camp could not support. According to the Transfer Authorization, Inmate Duff is to be returned to the Bell County Forestry Camp upon completion of his legal work.
The copy was sent directly to Inmate Duff from the Records Department. A Transfer Authorization to Northpoint Training Center could not be provided, as it did not exist. The Records Clerk apparently did not advise Inmate Duff of this when she sent the copy of the transfer.
I regret the inconvenience this may have caused, but I was unaware of the failure to notify Inmate Duff of the non-existence of the Transfer Authorization to Northpoint Training Center until I received the complaint he filed with your office.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. The Northpoint Training Center provided Mr. Duff with the only Transfer Authorization in his institutional file and, in its response to the letter of appeal, has advised that the other requested Transfer Authorization not exist. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Center's actions, in responding to the original request, was procedurally deficient in failing to affirmatively advise Mr. Duff that one of the records he requested did not exist. However, we find that the substantive actions of the Northpoint Training Center did not violate the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.